L.D.
("Mother") and C.B.D. ("Grandfather")
appeal pro se from the trial court's August 19,
2015 order that denied Grandfather's request for partial
custody and Mother's request for weekly telephone calls
with her now twelve-year-old biological daughter,
M.G.D.[1] After careful review, we reverse and
remand.

Mother
and Appellee, M.G., are former lovers who adopted one
another's biological children, i.e., M.G.
adopted M.G.D. and Mother adopted M.G's now-teenage
biological son, E.G.D. The family remained intact for
approximately thirteen years, until April of 2011. On
November 14, 2011, M.G. filed a complaint for custody wherein
she requested sole legal and physical custody of her son and
primary physical custody of M.G.D. Mother's counterclaim
requested primary physical custody of both children and asked
that M.G. receive periods of supervised physical custody.

Following
a custody conciliation conference, Mother and M.G. entered a
series of interim consent agreements which culminated in the
August 2, 2012 custody order wherein each parent maintained
primary physical custody of her biological child with varying
degrees of partial custody of the other child. Subsequent to
the August 2012 order, Mother expressed concerns that E.G.D.
was aggressive toward her and M.G.D. and that he had serious
mental health issues. M.G. disputed the allegations against
their son. Nevertheless, the then-appointed parent
coordinator recommended that E.G.D. get treatment from Adele
Cox, M.D. and Bradford Norford, PhD., and that Mother and
E.G.D. participate in parent/child counseling in lieu of the
custodial periods outlined in the consent
order.[2] Additionally, the parent coordinator
recommended that both parents and children participate in a
custody evaluation administered by Stephen Miksic, Ph.D.

During
a subsequent custody exchange on May 27, 2013, Mother shot
M.G., who was in her car, several times in the presence of
both children. M.G. escaped grievous injury but spent two to
three days in the hospital. E.G.D., who was in the front
passenger seat of the car, was not injured. Mother was
arrested, tried, and convicted of, inter alia,
attempted homicide and endangering the welfare of children.
She was sentenced to twenty-two and one-half to fifty-two
years imprisonment.[3] During the criminal proceedings, Mother
was prohibited from communicating with E.G.D. While the
criminal court did not level a similar prohibition relating
to M.G.D, it proscribed her from talking to her daughter
about the shooting incident. Mother continues to maintain
that she acted in self-defense and shot at M.G. only to avoid
being run down by the automobile M.G. was driving.

Following the shooting, M.G. filed protection from abuse
petitions against Mother and an emergency petition to modify
custody. Grandfather, who is Mother's father, countered
with an emergency petition to intervene wherein he requested
custody of M.G.D. Grandfather attached a hand written
certification outlining his concern that M.G.D. was being
physically abused by then-eleven-year-old E.G.D. while in
M.G.'s physical custody and that M.G. did not curtail the
behavior. Grandfather stated that he observed welts and
bruises on his granddaughter following visits with M.G. and
that M.G.D. advised him that she feared E.G.D., who had
injured her. M.G. filed preliminary objections to
Grandfather's petition to intervene. In addition to
challenging Grandfather's standing to seek primary
custody under § 5324 of the Child Custody Law, 23
Pa.C.S. §§ 5321-5340, M.G. contested
Grandfather's claims of physical aggression by her son
against M.G.D.[4]

Thereafter, Grandfather filed an amended petition to
intervene outlining additional incidents of M.G.D.'s
abuse at the hands of E.G.D. and noted his grandson's
behavioral issues, including alleged incidents where he
threatened to kill an elementary school teacher and was
suspended from school for posting a racially-charged diatribe
on his school's computer network. Grandfather invoked an
additional right to seek partial custody under 23 Pa.C.S.
§ 5325(2), which applies where parents have been
separated for at least six months.[5]See L.A.L. v. V.D.,
72 A.3d 690 (Pa.Super. 2013) ("Under Child Custody Act,
grandparents of a child whose parents never married have
standing to seek partial custody of grandchild."). On
June 4, 2013, the trial court entered a temporary order
granting Grandfather primary physical custody of M.G.D. and
prohibiting anyone except the child advocate, Lisa Kane
Brown, Esquire, from discussing Mother's pending criminal
case with M.G.D. Attorney Kane Brown was previously appointed
through the Montgomery Child Advocacy Project
("MCAP") as the child advocate in relation to the
PFA action M.G. filed against Mother.[6]

During
the ensuing two-day custody trial, the trial court focused on
evidence as to whether E.G.D. presented a significant risk of
harm to M.G.D. Pointedly, as it relates to Grandfather's
petition, the focus of the court's inquiry was whether
M.G.D. "is substantially at risk due to parental abuse,
[or] neglect" pursuant to § 5324. If Grandfather
could not demonstrate a substantial risk of harm based upon
M.G.'s lax response to E.G.D.'s behaviors, he would
lack standing to seek physical or legal custody under §
5324. In order to understand each child's perspective of
the sibling dynamic, the court heard testimony from,
inter alia, E.G.D.'s therapist, Dr. Norford, and
M.G.D.'s psychologist, Robert Schwarz,
Ph.D.[7]

At the
close of the evidentiary hearings, the trial court determined
that, despite evidence of physicality, Grandfather's
concerns for M.G.D.'s safety were unwarranted and that
M.G.'s reactions to E.G.D.'s behaviors were not
tantamount to parental neglect. Hence, it ruled that
Grandfather lacked standing to seek primary physical custody.
The trial court sustained M.G.'s preliminary objection,
dismissed Grandfather's petition to intervene pursuant to
§ 5324, and, as a default positon, it awarded M.G.
primary custody without addressing any of the best-interest
factors that courts are statutorily mandated to consider
"in ordering any form of custody[.]" See
23 Pa.C.S. § 5328(a).

While
the trial court denied Grandfather's petition to
intervene pursuant to § 5324 relating to physical and
legal custody, it granted Grandfather's petition insofar
as he sought to exercise partial physical custody under
§ 5325. Id. at 280. However, the court
neglected to fashion a custody schedule for Grandfather.
Instead, it decided to "leave it to the attorneys to try
and work something out." Id. The trial court
specifically sought input from the child advocate whom it had
previously entreated to take a "proactive" role in
the custody case by drafting a list of "dos and
don'ts, " for the court's approval, regarding
conduct in both households and the conditions of custody.
Id. at 272-273, 275.[8] Neither party appealed.

Between
June and July 2013, Grandfather was able to exercise partial
custody on two occasions for a total of thirty-six hours
before the child advocate unilaterally terminated his
custodial rights after she determined that Grandfather
contravened her directives regarding appropriate
communications with M.G.D. Specifically, the child advocate
believed that Grandfather permitted unauthorized telephone
contact between Mother and M.G.D. and that he indicated an
intention to pump the child for information. Grandfather
attempted to explain that the pertinent telephone calls
occurred prior to the custody court's prohibition, but
his efforts were futile. Similarly, while Grandfather
declared that the reference of pumping M.G.D. for information
related to information concerning E.G.D.'s physical
abuse, the child advocate believed that it related to
Mother's pending criminal case. Accordingly, exercising
authority delegated by the trial court, the child advocate
terminated all contact between Grandfather and M.G.D.

On
August 14, 2013, M.G. filed a petition to modify the June
2013 custody order. She requested sole legal and physical
custody of both children. Following a hearing, on October 28,
2014, the trial court entered a final order granting M.G.
sole physical custody of M.G.D. and her brother. Grandfather
was denied partial physical custody. M.G. and Mother shared
legal custody of the children in name only. M.G. was
empowered to make all daily and emergency decisions as well
as all educational and therapeutic choices without
Mother's consent. If Mother objected to any of the
decisions, she was required to petition the court for relief.
The custody order limited Mother's contact with M.G.D. to
written communication and directed that the child advocate
review Mother's correspondence with M.G.D., and, if
appropriate, forward it directly to the child.[9] Conversely,
"if inappropriate, [the child advocate] may strike the
inappropriate portions, and forward [it] to [M.G.D.]" or
return it to Mother with an explanation. Trial Court Order,
10/28/14, at 2.

Neither
party appealed the October order; however, approximately two
weeks later, Grandfather filed a motion to modify the custody
order. He again asserted that M.G. and the child advocate had
previously precluded him from exercising his custodial rights
or contacting his granddaughter on the telephone. He again
requested partial custody of M.G.D. consisting of two
non-consecutive weekend days per month and one week during
summer vacation and sought permission to take the child on
his visits with Mother. During the ensuing hearing, the
parties agreed to also address Mother's motions for
visitation and contact by telephone and written
correspondence.[10] N.T., 4/27/15, at 19-20, 44. As to the
increased contact, Mother sought permission to make one
telephone call and mail one letter to M.G.D. per week.

The
focus of the evidentiary hearing was Grandfather's
interaction with M.G.D., his ongoing concern about
M.G.D.'s welfare around E.G.D., and his remark that he
intended to gain information from his granddaughter.
Grandfather presented his and Mother's testimony, M.G.
testified on her own behalf, and the child advocate presented
her concerns that Grandfather's preoccupation with
M.G.D.'s safety and his steadfast support of Mother's
criminal defense interfered with the children's best
interest. Following the evidentiary hearing and review of the
parties' post-hearing memoranda, on August 18, 2015, the
trial court entered an order denying Grandfather's
request for partial physical custody and Mother's
requests for weekly telephone contact. It granted Mother
permission to mail her daughter one letter per week, subject
to the child advocate's approval.[11]

a) the Court committed an error of law when it denied
appellant's requests for visitation and phone contact
with her daughter as it deprives appellant ([L.D.]) of her
Constitutional rights under the 1st and 14th Amendments.

b) the Court committed an error of law when it denied
grandparent visitation to appellant . . . with his
granddaughter, as it applied a "fact" not in
evidence when it considered the legal standards in making
this decision.

c) the Court committed an error of law when it used the
"contentious nature" of the relationships between
Plaintiffs and Defendant as the basis of denying
Plaintiffs['] requests for contact with the minor child,
rather than applying the appropriate legal standards. Also,
the Court did not consider the fact that the source of the
"contention" is due to the Defendant, not the
Plaintiffs, and the Plaintiffs should not be penalized for
this.

d) the Court, in its award of weekly letters from Plaintiff
[L. D.] to her daughter, ignored the fact that this does not
effect MEANINGFUL communication with her daughter since the
Defendant admitted in court that the child is not
consistently being given the letters.

Concise Statement of Matters Complained of on Appeal,
9/17/15, at 1.

We
review the trial court's custody order for an abuse of
discretion. S.W.D. v. S.A.R.,96 A.3d 396, 400
(Pa.Super. 2014). We defer to the trial court's factual
findings that are supported by the record and its credibility
determinations. Id. However, we are not bound by the
trial court's deductions or inferences, nor are we
constrained to adopt a finding that cannot be sustained with
competent evidence. A.V. v. S.T., 87 A.3d 818, 820
(Pa.Super. 2014). In sum, this Court will accept the trial
court's conclusion unless it is tantamount to legal error
or unreasonable in light of the factual findings. S.W.D.,
supra at 400.

The
primary concern in any custody case is the best interests of
the child. "The best-interests standard, decided on a
case-by-case basis, considers all factors which legitimately
have an effect upon the child's physical, intellectual,
moral, and spiritual well-being." Saintz v.
Rinker, 902 A.2d 509, 512 (Pa.Super. 2006) (citing
Arnold v. Arnold, 847 A.2d 674, 677 (Pa.Super. 2004)).

Mother
raises the following questions for review:

1. Did the lower court's decision to deny visitation and
phone contact between [L.D.] and her biological daughter
[M.G.D.] violate [L.D.'s] Constitutional Rights under the
First and Fourteenth Amendments?

2. Did the lower court ignore a grave issue of child welfare
by not immediately modifying custody of [M.G.D.] or allowing
her biological family any contact with her to ensure her
ongoing safety once new information became available (and was
brought to the attention of the court) after the hearing of
4/27/15 which spoke to abuse and /or neglect of the child
[M.G.D.] while under the care of appellee [M.G.]?

3. Did the lower court commit an error of law when it
utilized "facts" either not in evidence and /or not
relevant to applicable law when making its decisions to deny
requests of appellants . . . for visitation /phone contact
and partial custody /grandparent visitation with the child
[M.G.D.]?

4.Are the lower court's decisions in this case in
accordance with statutory and case law, and do they provide
means for meaningful communication between [Mother] and
[M.G.D.]?

At the
outset, we reject Mother's third argument summarily
because the crux of her contention challenges only the trial
court's decision vis-à-vis Grandfather and not any
aspect of the custody order relating to her custodial rights.
Although Mother referenced her custodial rights in phrasing
this issue, her argument simply invokes the now-repealed
Custody and Grandparent Visitation Act, and asserts that the
court erred in failing to grant Grandfather's request for
partial custody. As Mother does not present a basis to
disturb the custody order in relation to her rights, this
claim does not warrant relief.

Similarly,
we note that Mother's second issue, regarding the
court's failure to consider new information about the
alleged abuse that E.G.D. inflicted upon M.G.D., is waived
because Mother ignored this contention in her Rule 1925(b)
statement. See Pa.R.A.P. 1925(b)(4)(vii)
("Issues not included in the Statement and/or not raised
in accordance with the provisions of this paragraph (b)(4)
are waived.").

Moreover,
even if the second issue had been preserved, it is meritless.
Concisely, Mother asserts that, in rendering its best
interest determination, the trial court neglected to consider
significant injuries that M.G.D. received to her head and
clavicle during July 2014. Mother surmised that the injuries
were the result of E.G.D.'s continued physical abuse and
that M.G.'s explanation for the injury, i.e.
that M.G.D. fell from a warped wall at a parkour
gym, [14] was a dubious attempt to cover up the
abuse. Accordingly, she opined that her direct contact with
M.G.D. is necessary to verify her daughter's continued
safety and welfare. She also complains that she was not
informed about the incident or the substantial injuries that
her daughter suffered. The record belies both of these
arguments.

First,
the trial court considered testimony regarding the injury,
but unlike Mother, it accepted M.G.D.'s explanation that
the injury was accidental. Our standard of review precludes
us from reweighing the testimony from Mother's
perspective and making a contrary determination in her favor.
Furthermore, the certified record refutes Mother's
insinuation that she was not informed of the injury. In fact,
Mother had been advised of M.G.D.'s hospitalization
during her criminal sentencing and her present assertion
sought only to confirm that this was the same injury that was
previously disclosed. Thus, although we believe that the
trial court, and more precisely the child advocate,
discounted the legitimate concerns of Mother and Grandfather
about M.G.D.'s safety around E.G.D., nothing in the
record supports Mother's specific assertion concerning
the trauma that M.G.D. sustained to her head and upper body
during July 2014.

Mother's
first preserved argument is that the trial court's
custody determination violates her constitutional
rights.[15] Although her precise argument is
difficult to follow, the crux of this contention is that,
even though she is incarcerated, her right to visit with
M.G.D. is a fundamental right guaranteed by the First and
Fourteenth Amendments to the Constitution of the United
States of America. She continues that the trial court can
only deny her right to visitation to prevent "a severe
adverse impact on [M.G.D.'s] welfare." Mother's
brief at 15. Other than one citation to our Supreme
Court's decision in D.R.C. v. J.A.Z., 31 A.3d
677 (Pa. 2011), Mother supports her cryptic claim with
references to the former child custody law, various
non-precedential cases, and three cases with questionable
relevance to the visitation rights of an incarcerated parent.
While Mother's argument is artless, it highlights a
significant flaw in the trial court's decision to deny
her request for visitation, i.e., by focusing upon
Mother's insistence upon her innocence and the effect
that Mother's increased contact with M.G.D. would have
upon the child's relationship with M.G. and E.G.D., the
trial court neglected to consider the factors relevant to
determine whether visitation with Mother, or, at least,
weekly telephone contact is in M.G.D's best interest.
Upon review, we find that the trial court based its denial of
Mother's request for expanded contact with M.G.D. on
improper considerations.

Section
5328 of the Child Custody Law, which we reproduce
infra, provides that, "In ordering any form of
custody, the court shall determine the best interest of the
child by considering all relevant factors, giving weighted
consideration to those factors which affect the safety of the
child[.]" 23 Pa.C.S. § 5328(a). However, where, as
here, one parent is incarcerated and will remain imprisoned
for an extended period, the applicability of several of the
enumerated statutory factors is questionable. Traditionally,
when determining the best interest of a child in reference to
an incarcerated parent's request for visitation, this
Court has considered the factors set forth in Etter v.
Rose, 684 A.2d 1082 (Pa.Super. 1996). See
D.R.C., supra.

In
D.R.C., our Supreme Court addressed the counseling
provision under § 5303(c) of the prior custody statutes
and reviewed the trial court's consideration of an
incarcerated parent's criminal conviction under §
5303(b). The relevant provisions, which were repealed and
reenacted in substantial part at 23 Pa.C.S. §§
5329(a) and (d), required that, prior to making an order of
physical custody or visitation, the court must determine
whether a parent who committed one of the offenses enumerated
in that section posed a threat of harm to his or her
child.[16] Subsection (c) of the former statute
required that the trial court appoint a counselor to the
offending parent. The precise question before the High Court
in D.R.C.

concerned
who was required to pay for the incarcerated parent's
counseling in the state facility. As it relates to the case
at bar, in disposing of the issue before it, the High Court
found that § 5303(b) and (c) did not apply to
incarcerated parents who were only seeking visitation with
their children within the prison. The court concluded,
"[W]e find that it was not the

General
Assembly's intent for subsections (b) and (c) to be
applied to requests for prison visitation." Id.
at 687. Instead, the section applied only to custody
considerations following a parent's release from prison.
Id. at 686. The Supreme Court reasoned,

[D]ue to the strictures of their confinement and the rules of
the penal institution, incarcerated parents are unable to
engage in the type of physical interaction feared by the
drafters of this legislation. Thus, it would serve no
significant ameliorative purpose to mandate counseling for
every incarcerated offending parent for the limited and
closely scrutinized contacts associated with prison visits. A
visitation request by an incarcerated parent necessarily
stands on different footing than a traditional custody
petition.

Id.

While
the Supreme Court concluded that a mechanical application of
§ 5303 was ill-fitting in the visitation scenario, it
astutely observed that the nature of the incarcerated
parent's criminal conduct was a component of the
determination. Thus, referring to Etter,
supra, a prison visitation case decided by this
Court, our High Court outlined the various factors relevant
to prison visitation. The Court explained,

In prison visit cases, the court in fashioning an appropriate
order, where it determines visits would be in the child's
best interests, is limited to a determination of the number
of visits and perhaps some contacts through telephone calls
and written correspondence. . . . [P]rison visit requests
involve additional factors unique to that scenario that
courts must consider in evaluating the overarching best
interests of the child. For example, in Etter v.
Rose, 454 Pa.Super. 138, 684 A.2d 1092, 1093 (1996), the
Superior Court recognized some of the factors to be
considered in deciding a question of visitation where the
parent is incarcerated: (1) age of the child; (2) distance
and hardship to the child in traveling to the visitation
site; (3) the type of supervision at the visit; (4)
identification of the person(s) transporting the child and by
what means; (5) the effect on the child both physically and
emotionally; (6) whether the parent has and does exhibit a
genuine interest in the child; and (7) whether reasonable
contacts were maintained in the past. Of course, although not
mentioned in Etter, another relevant consideration
is the nature of the criminal conduct that culminated in the
parent's incarceration, regardless of whether that
incarceration is the result of a crime enumerated in section
5303(b).

Id. The D.R.C. Court reversed the order
denying relief and remanded the matter for a hearing to
address the parent's request for prison visitation
pursuant to the relevant factors. We recognize that
D.R.C. concerns the statutory interpretation of a
provision that has been repealed and reenacted as § 5329
of the current child custody law. However, since § 5329
is materially indistinguishable from its predecessor, we
follow the guidance that our High Court provided in
addressing prison visitations in D.R.C.

Herein,
the trial court did not consider how visitation would affect
M.G.D. physically and emotionally in light of her age, travel
logistics, and supervision during the visit. Likewise, it
neglected to determine whether Mother's interest in
expanding her contact with M.G.D. is genuine. Moreover, the
trial court failed to consider the nature of Mother's
criminal conduct or its effect upon her daughter.

Rather
than confronting the relevant factors, the trial court first
noted that incarceration necessarily curtailed Mother's
freedom of association and it then considered Mother's
past statements and behaviors, which it characterized as
arrogant and short-tempered. In addition, the court
implicated Mother in Grandfather's statement to her that
he would pump M.G.D. for information, which the court
interpreted as an attempt to influence the child's
testimony in the criminal proceedings. In sum, the trial
court reasoned that "permitting visitation and/or
telephone contact with the child(ren) would be detrimental to
the child(ren) given that [Mother] and Grandfather continue
to maintain that [Mother] is innocent in the shooting of
M.G." Trial Court Opinion, 10/19/15, at 6 (parentheses
in original) (citation to record omitted). As the trial court
failed to consider the visitation factors that we outlined in
Etter, supra, and that our Supreme Court
endorsed in D.R.C., supra, we vacate the
order denying Mother's request for visitation and remand
for the trial court to render a determination in light of the
appropriate considerations.

Although
we remand for further proceedings, our resolution of
Mother's remaining complaint, which is a tangent of her
request for visitation, will assist the trial court's
visitation determination. We therefore address that argument
as well.[17] Essentially, Mother contends that the
court's denial of her request for greater contact with
M.G.D. denied her the right to meaningful communication with
her daughter. In asserting this complaint, Mother highlights
the extent of the child advocate's interference,
albeit on authority delegated by the trial court, with her
already- compromised ability to communicate with her
daughter. The following facts are relevant to our review.

As
noted supra, in fashioning the June 2013 custody
order, the trial court enlisted the child advocate to oversee
the custody arrangement. During October 2014, the trial court
extended its reliance upon the child advocate and directed
her to review Mother's correspondence with M.G.D. and
censor, redact, or strike any portions that she deemed
inappropriate. The certified record demonstrates that the
child advocate wielded her delegated authority industriously.
She regularly micromanaged Mother's contacts with M.G.D.
in the name of the child's best interest. Beyond merely
reviewing Mother's missives for inappropriate content,
the child advocate first objected to Mother numbering her
correspondence, and then instructed Mother to reduce the
frequency of her weekly correspondence with M.G.D. to one
letter per month. Neither of these edicts involved any
specified inappropriate statements on Mother's part. The
child advocate disapproved of the enumeration because she had
not seen the prior letters and could not confirm that they
had been sent. N.T., 4/27/14, at 83. Likewise, she limited
the communications to "small talk" and ordered that
Mother reduce the frequency of the communiqués because
she was told that their frequency upset the child.
Id. at 80, 83.

As to
the latter requirement, even when Mother complied with the
child advocate's mandate and waited longer than normal
before mailing M.G.D. her next letter, the child advocate was
still dissatisfied. The child advocate rejected that
correspondence because Mother had written to M.G.D. to expect
fewer letters from her and attempted to reassure her that the
reduction did not mean that Mother loved her any less. The
child advocate characterized this letter as "about three
paragraphs" that she believed were patently
inappropriate to forward to her adolescent client. In
reality, she objected to the following passage,

[M]y dearest [M.G.D.], hello sweetheart. I'm sending you
a big hug through the page of this letter. I hope you can
feel it sending you my warmth and love. You may have noticed
that it was a little longer than usual between my last letter
and this one. The reason for that is because [the child
advocate] told me that sometimes it upsets you when you read
my letters, so she [M.G.] and Dr. Norford [18]would like me
to send you less letters. Now, [M.G.D.], the last thing I
want is for you to be upset. I realize you are in a tough
situation, and I certainly don't want to make it worse.
Now I understand that reading my letters means you think of
me and us and that makes you miss me more, and that is very
hard. So I will send you less letters for now as long as you
understand that it does not mean I am thinking about you less
because my love now is stronger than anything on this [E]arth
and that I feel it each minute of every single day just as I
know how much you love me . . . too.

Id. at 83-84.

In
justifying her decision to the trial court, the child
advocate explained, "[R]ather then redact almost the
entire first page of [Mother's] Letter, which would have
looked rather strange, I sent it back to [Mother] with a
letter . . . stating [that 'the entire first paragraph is
inappropriate'] and [informing her] that if she wanted to
rewrite it and leave those portions out . . . [she] would be
happy to forward it to [M.G.D.]" Id. at 80-81
(quoting Child Advocate's Letter dated 2/10/15).

Neither
of the child advocate's explanations identifies which
aspect of the letter was inappropriate, and the record does
not reveal the specific reason for the child
advocate's unilateral decision to reject it. As
outlined, supra, Mother's letter did not insult
or belittle M.G. or E.G.D., discuss Mother's pending
criminal matters, or even present a false hope of their
immediate reunification. Indeed, we are uncertain whether the
child advocate protested the letter's reference to M.G.
and Dr. Norford, Mother's loving reassurances, or the
statement that implicated the child advocate in the decision
to reduce the contacts. While we will not presume to know the
child advocate's logic, it is evident that the
result of the child advocate's excessive control was that
Mother was required to reduce her weekly contacts with M.G.D.
and then was forbidden to explain to her daughter why she was
sending the correspondence less frequently.

Although
Mother declined to revise the pertinent letter and simply
acquiesced to the child advocate's directive to
communicate with her daughter less frequently, this episode,
which stems entirely from the child advocate's overreach
of her court-ordered mandate to ensure that the
correspondence was appropriate, uncovered yet another problem
with this case-the trial court's improper delegation of
its authority to child advocate Attorney Kane Brown.

The
trial court did not define Attorney Kane Brown's precise
role in this child custody case. Indeed, the court's Rule
1925(a) opinion refers to

Attorney
Kane Brown interchangeably as both a child advocate and
guardian ad litem. See Trial Court Opinion,
10/19/15, at 2, 7, 8. Unlike the roles of guardian ad
litem and counsel for child, which are clearly
delineated in the child custody law, the statute does not
recognize the role of "child advocate" or define
the scope of a child advocate's authority in custody
cases. See 23 Pa.C.S. §§ 5334-5335. Recall
that Attorney Kane Brown was initially appointed through MCAP
as M.G.D.'s child advocate in the PFA action against
Mother, and ostensibly retained pursuant to 42 Pa.C.S. §
5983, which provides for the appointment of advocates for
children who are victims or material witnesses in criminal
proceeding.[19]

Moreover,
stark differences exist among the appropriate
responsibilities of an MCAP attorney appointed as a child
advocate for a victim of abuse, neglect, or a crime; a
guardian ad litem appointed under § 5334; and
legal counsel appointed pursuant to § 5335. Basically,
the MCAP child advocate utilizes a holistic approach to
representation that is not specifically authorized by the
child custody law and transcends both that of guardian ad
litem and legal counsel.[20]

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Furthermore,
the two types of representatives that are authorized under
the child custody law serve different functions, and the
trial court&#39;s intention in appointing Attorney Kane Brown
is not obvious from the authority that it delegated to her
throughout these proceedings. For example, Attorney Kane
Brown has performed tasks consistent with legal counsel
appointed under &sect; 5335(a), i.e., she invoked
the privilege of communication during one hearing, and the
trial court routinely invited her to present evidence and
cross-examine witnesses. However, during the identical
period, Attorney Kane Brown maintained monthly telephone
contact with M.G.D., presented her concerns and general
recommendations to the court consistent with the guardian
ad litem&#39;s powers and duties under &sect;
5334(b)(6) and (8), and the trial court not only examined her
on the record, presumably under oath, and elicited opinion
testimony interpreting one of Grandfather&#39;s statements,
but it also subjected her to cross-examination by Mother and
Grandfather. The latter considerations are particularly
relevant in light of the fact that, effective September 3,
2013, the Supreme Court clarified, inter alia, that
the guardian ad litem can no longer represent both
the best interest and legal interest of the child, or present
evidence or cross-examine witnesses; however, the guardian
ad litem may testify and be subject to
cross-examination.[21] While the changes became effective three
months after the trial court first endowed Attorney Kane
Brown with her court-ordered authority during June 2013, the
alterations were operative when the trial court extended this
power in its October 2014 custody order. Moreover, Attorney
Kane Brown's role ...

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